Ord 2256 - Amend Chapter 14 Article XL - Massage Therapy Establishments and Massage Therapy PractitionersORDINANCE 2256
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AMENDING TOWN CODE CHAPTER 14 ARTICLE XI. - MASSAGE THERAPY
ESTABLISHMENTS AND MASSAGE THERAPY PRACTIONERS
WHEREAS, the Town currently regulates the practice of massage and the operation of
Massage Establishments for the benefit of the public health, safety and welfare; and
WHEREAS, Business and Professions Code section 4600 et seq. (enacted by SB 731 in
2008 and amended by AB 619 in 2011) created a statewide permitting system administered by
the California Massage Therapy Council for issuing massage worker permits, thereby
preempting local permitting systems and requirements; and
WHEREAS, in January 2015, the State of California adopted Assembly Bill 1147 ( "AB
1147 "), an act to amend Section 460 of, and to add and repeal Chapter 10.5 (commencing with
Section 4600) of Division 2 of the Business and Professions Code, and to amend Section 51034
of the Government Code, relating to healing arts. The State law authorizes the Town of Los
Gatos to adopt and enforce local ordinances that govern zoning, business licensing, and
reasonable health and safety requirements for establishments and businesses of a licensed or
certified healing arts professional, including a certified Massage Therapist. The law also made
clarifying and conforming changes regarding local regulation of Massage Establishments and
businesses; and
WHEREAS, the Business and Professions Code continues to allow certain local regulation
of Massage Establishments and, to enable the Town of Los Gatos to carry out such local
regulation and review of Massage Establishments found in Business and Professions Code
section 4600 et seq., the Town must amend its Massage Establishment regulations.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS
FOLLOWS:
SECTION I.
Los Gatos Town Code Chapter 14 Article XI — Massage Therapy Establishments and Massage
Therapy Practioners is hereby repealed and reenacted to read as follows:
ARTICLE XI - MASSAGE ESTABLISHMENTS AND MASSAGE PRACTIONERS
Sec. 14.110.014. - Purpose and intent.
Sec. 14.110.015. - Definitions.
Sec. 14.110.020. - Exemptions.
Sec. 14.110.025. - Permit /certification requirements.
Sec. 14.110.035. - Applications for Massage Establishment Permit.
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Sec. 14.110.040. - Grant or denial of application for Massage Establishment Permit.
Sec. 14.110.045. - Business license.
Sec. 14.110.046. - Massage Therapist and Massage Practitioner registration.
Sec. 14.110.047. - Notice of employees' status.
Sec. 14.110.050. - Operating requirements for Massage Establishments.
Sec. 14.110.055. - Sanitation requirements /condition of premises.
Sec. 14.110.060. - Prohibited acts.
Sec. 14.110.065. - Out -call massage services.
Sec. 14.110.070. - Transfer of Massage Establishment Permit.
Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit; payment of
renewal fee.
Sec. 14.110.080. - Suspension and revocation of Massage Establishment Permit.
Sec. 14.110.085. - Criminal penalties.
Sec. 14.110.090. - Inspection by officials.
Sec. 14.110.095. - Massage Establishment operated in violation of this Article XI deemed
a public nuisance.
Sec. 14.110.100. - Application of this Article XI to pre- existing Massage Establishments.
Sec. 14.110.014. - Purpose and intent.
(a) Purpose.
(1) The Town of Los Gatos is authorized to regulate Massage Establishments pursuant
to Government Code Section 51030 et seq., Business and Professions Code Sections 460 and
4600 et seq. and Section 7 of Article XI of the California Constitution.
(2) In enacting these regulations, the Town of Los Gatos Town Council (hereafter
referred to as "Town Council ") recognizes that massage is a viable professional healing art
offering the public valuable health and therapeutic services.
(3) It is the purpose and intent of the Town Council that the operation of Massage
Establishments and persons offering massage be regulated in the interests of public health,
safety, and welfare by providing minimum building, sanitation, and health standards and to
ensure that persons offering massage shall possess the minimum qualifications necessary to
operate such businesses and to perform such services offered.
(4) It is the purpose and intent of this Article XI to articulate regulations to ensure that
persons offering massage services are qualified and trained and can be expected to conduct
their work in a lawful and professional manner.
(5) Specifically, the regulations in this Article are intended to reduce or prevent blight,
protect and preserve the quality of commercial and residential properties, protect and preserve
the quality of life in the Town of Los Gatos, deter criminal activity, enhance enforcement of
criminal statutes, and prevent commercial sexual exploitation and human trafficking.
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(b) Conflicts with other provisions of this Code. In the event of any conflicts or
inconsistencies between the provisions of this Article XI and the remaining provisions of this
Chapter 14 or with the provisions of any other chapter(s) of the Town Code, the provisions of
this Article XI shall control, unless to do so would be inconsistent with the stated purpose of
this Article XI. Any Massage Establishment is further regulated pursuant to Chapter 29 of this
Code.
(c) Responsibility for enforcement. The primary responsibility for enforcement of the
provisions of this Article XI shall be vested in the Chief of Police.
Sec. 14.110.015. - Definitions.
For purposes of this Article XI, the following words, terms and phrases are defined as
follows:
California Massage Therapy Council ( CAMTQ means the California Massage Therapy
Council created pursuant to Chapter 10.5 of Division 2 of the California Business and
Professions Code.
Certified Massage Therapist or CMT means a person who holds a current and valid
CAMTC certification as a Massage Therapist.
Certified Massage Practitioner or CMP means a person who holds a current and valid
CAMTC certification as a Massage Practitioner.
For compensation means the exchange of massage for money, goods or services. An
establishment or person cannot avoid the requirements of this Article by offering free massage
in conjunction with other services or goods provided for compensation.
Massage means any method of treating the external parts or surfaces of the human
body by bathing, rubbing, pressing, stroking, pounding, kneading, tapping, vibrating, or
touching or stimulating with the hands or any part of the body, or with the aid of any
mechanical or electrical apparatus or other appliances or devices, with or without the use of
oils, creams, tonics, lotions, antiseptics, tanning products, or other similar preparations.
Massage shall further include baths, aromatherapy, vapor, shower, electric tub, sponge, hot
towels, sauna, steam, or any other type of bathing activity where the essential nature of the
service involves any method of pressure or friction against, or stimulating the external parts of
the human body with the hands or any other parts of the body or devices.
Massage Establishment means any establishment, having a fixed place of business
where any person, firm, association, partnership, corporation, joint venture or a combination of
individuals engages in, conducts, carries on or permits to be engaged in, conducted or earned
on for consideration, massages or health treatments in the Town in which massages are given
in return for compensation of any type; including but not limited to any hot tub /sauna
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establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or
office in which massage services are made available to clients. For purposes of this Article, the
term "Massage Establishment" shall include, but not be limited to, any establishment providing
off - premises massage services as well as any establishment which offers services such as
relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the
essential nature of the interaction between the employee and the customer involves a
massage.
Massage Establishment Permit means a written document authorizing the holder to
engage in the business of providing massage for compensation.
Off - premises massage means practicing massage for compensation at a location other
than at a permitted Massage Establishment.
Operator means any person who operates and is responsible for the day -to -day
activities of a Massage Establishment.
Owner means any individual who has any direct or indirect ownership interest in a
Massage Establishment.
Person means any individual, partnership, firm, association, corporation, joint venture
or any other combination of individuals for the purpose of doing business.
Police Chief means the Los Gatos /Monte Sereno Police Chief or his or her designee.
State Certificate Holder means a person who holds a current and valid California State
Certificate from the CAMTC as a Massage Practitioner or Massage Therapist, per Business and
Professions Code sections 4600 -4620.
Sec. 14.110.020. - Exemptions.
The provisions of Section 14.110.025 shall not apply to the following classes of
individuals while engaged in the performance of the duties of their respective professions:
(a) Physicians, surgeons, chiropractors, acupuncturists, osteopaths, registered nurses,
physical therapists or other health professionals who are duly licensed to practice their
respective professions under the laws of the State of California when engaging in such practice
within the scope of his or her license.
(b) Trainers of any amateur, semi - professional, or professional athlete or athletic team,
so long as such persons do not practice massage therapy as their primary occupation at any
location where they provide such services in the Town.
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(c) Barbers or cosmetologists who are duly licensed under the laws of the State of
California while performing massage within the scope of their licenses while engaging in
practices within the scope of their licenses.
(d) Persons administering massages or health treatments involving massage to other
persons who are participating in a recreational or special event such as road races, track meets,
triathlons, educational events, or conferences that has been approved by the Town, provided
that all of the following conditions are met:
(1) The massage services are made available equally to all participants in the event;
(2) The event is open to participation by the general public or a significant segment of
the public;
(3) The massage services are provided during the event in an open environment at the
site of the event;
(4) The sponsors of the event have approved the provision of massage services at the
event; and
(5) The persons providing the massage services are in compliance with all applicable
Town Codes and other laws.
(e) Somatic practitioners who use no physical touch of any kind at any time in their
practice.
(f) Enrolled students of a school of massage when they are performing massage within
the Town as part of a formal supervised internship or training program operated by the school,
without compensation other than school credit, on the premises of a Massage Establishment
duly authorized to operate pursuant to the terms of this chapter; and provided that the
operator of the Massage Establishment has first notified the director in writing of the name,
residence address, and school of the students and the dates of the trainings.
Sec. 14.110.025. - Permit /certification requirements.
(a) No person, firm, association, partnership, corporation or other entity shall have an
ownership interest in or operate a Massage Establishment without first obtaining a Massage
Establishment Permit from the Police Chief or his /her designee.
(b) Except as provided in Section 14.110.020, no person other than a Certified Massage
Therapist or a Certified Massage Practitioner shall provide massage for compensation. All
Massage Therapist Permits issued by the Town prior to effective date of this ordinance shall
have until June 30, 2018 to obtain a current and valid California State Certificate from the
CAMTC as a Massage Practitioner or Massage Therapist.
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(c) Except as provided in Section 14.110.020, no person, firm, association, partnership,
corporation or other entity shall employ any person other than a Certified Massage Therapist or
Certified Massage Practitioner to provide massage for compensation. All Massage Therapist
Permits issued by the Town prior to effective date of this ordinance shall have until June 30,
2018 to obtain a current and valid California State Certificate from the CAMTC as a Massage
Practitioner or Massage Therapist.
Sec. 14.110.035. - Applications for a Massage Establishment Permit.
(a) Submission of application. All persons who wish to obtain a Massage Establishment
Permit from the Town shall file a written application with the Police Chief on a form provided
by the Town, which contains the following information:
(1) The full name, including any nicknames or other names used presently or in the past,
and the present address and phone number of the applicant;
(2) The applicant's two (2) most recent addresses within the last seven (7) years, and the
dates of residence at each address;
(2) Proof the applicant is over eighteen (18) years of age; and
(3) The applicant's height, weight, and colors of eyes and hair; and
(5) The applicant's Driver's License and /or California I.D. number (if any) and Social
Security number and CAMTC certification; and
(6) The applicant's two (2) most recent employers within the last seven (7) years,
including their names, addresses and phone numbers, and the position held by the applicant
and dates of employment; and
(7) The names and addresses of any massage facility or other businesses involving
massage by which the applicant has been employed, or self - employed as a Massage Therapist,
within the past ten (10) years and the dates of employment; and
(8) Any criminal conviction on the part of the applicant for offenses other than traffic
violations within the ten (10) years preceding the date of the application; and
(9) Any criminal charges pending against the applicant at the time of the application,
other than traffic citations, the name and location of the court in which the criminal charges are
pending and the applicable case numbers; and
(10) Whether the applicant has ever had a license, certificate or permit related to the
practice of massage, or the operation of a Massage Establishment, or other business involving
the practice of massage, suspended or revoked within the ten (10) years preceding the date of
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the application, the dates and reasons for any such suspensions or revocations, and the name
and location of the jurisdiction or public agency which suspended or revoked such license,
permit or certificate; and
(11) Whether the applicant has ever operated or been employed at any business which
has been the subject of an abatement proceeding under the California Red Light Abatement Act
(California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions.
If the applicant has previously worked at such a business, he /she should state on the
application the name and address of the business, the dates on which the applicant was
employed at such business, the name and location of the court in which the abatement action
occurred, the applicable case number and the outcome of the abatement action; and
(12) Whether the applicant had previously applied to the Town for a Massage
Establishment Permit, the date of the previous application and any other name(s) under which
the application was made; and
(13) The name and address of the owner of the real property upon or in which the
business is to be conducted. In the event the applicant is not the legal owner of the property,
the application must be accompanied by a copy of the lease and a notarized acknowledgment
from the owner of the property that a Massage Establishment will be located on his /her
property; and
(14) Proof of malpractice insurance in the sum of not less than one hundred thousand
dollars ($100,000.00) per Massage Therapist licensed, or to be licensed, at the Massage
Establishment up to a maximum of five hundred thousand dollars ($500,000.00); this
requirement can be satisfied by malpractice insurance being provided in the name of individual
Massage Therapist or establishment; and
(15) Written authorization for the Town, its agents and employees, to seek information
and to conduct an investigation into the truth of the statements set forth in the application and
into the background of the applicant; and
(16) The applicant shall advise the Town in writing of any change of address or change in
fact(s) represented to Town which may occur during the Town's processing of the application;
and
(17) A statement under penalty of perjury that the applicant has not knowingly and with
the intent to deceive made any false, misleading or fraudulent statements or omissions of fact
in his /her application or any other documents required by the Town to be submitted with the
application; and
(18) Other related information requested by the Police Chief in order to evaluate the
background and qualifications of the applicant for the permit sought. This may include
information or documentation to indicate whether the Massage Therapist is affiliated with or a
member of any recognized national or state massage therapy association or organization.
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(b) Payment of permit fees. At the time of filing an original application for a Massage
Establishment Permit, applicants shall pay permit fees (as applicable) in an amount established
by a resolution of the Town Council. All fees shall be non - refundable.
(c) Processing of application and investigation. Upon receipt of an application for a
Massage Establishment Permit, the Police Chief shall review the application and supplementary
material. If it is clear from the face of the application and supplementary materials that the
applicant is not qualified for a permit, or the application is incomplete, the application may be
denied without further investigation. If it appears from the face of the application and
supplementary material that the applicant may be eligible for the permit sought, the Police
Chief shall verify the information submitted by the applicant and shall further investigate the
qualifications of the applicant as follows:
(1) Photographs /fingerprints /review of criminal history. The Police Chief shall require a
recent photograph of the applicant.
Applicant shall also be responsible for submitting fingerprints pursuant to "Livescan"
procedures and pay all costs associated with such submittal. The applicant's fingerprints will
then be submitted to the Department of Justice (DO1) and the Federal Bureau of Investigation
(FBI) for evaluation. Upon receipt of the report from the Department of Justice (DOJ) and the
Federal Bureau of Investigation (FBI), the Police Chief shall review the criminal history (if any) of
the applicant.
(2) Investigation of location and premises of Massage Establishment. Upon receipt of an
application for a new Massage Establishment, the Police Chief shall refer the application to the
Town's applicable departments which shall review the application and, if necessary, inspect the
premises to ensure that the operation of the business at the designated site will comply with
the provisions of this Article XI and the Town's zoning, building and fire safety standards, and
any other applicable Town codes. If a Use Permit is required for the Massage Establishment the
applicant shall comply with the Town's Zoning Code. No Home Occupation Permit shall be
issued for a Massage Establishment or massage activities.
(3) Additional investigation. The Police Chief may conduct additional investigation in a
manner authorized by law when necessary to determine whether the applicant meets the
qualifications for a permit pursuant to this Article XL.
Sec. 14.110.040. - Grant or denial of application for Massage Establishment Permit.
(a) Time for grant or denial of applications. The Police Chief shall grant or deny the
application for a Massage Establishment Permit within thirty (30) calendar days of the
applicant's submission of the application and all required supplementary material. When
necessary to conduct a complete investigation of an application, the Police Chief may extend
this time to a maximum of sixty (60) calendar days. Granting of a permit requires the Massage
Establishment to be in compliance with Chapter 29 of this Code.
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(b) Grounds for denial of Massage Establishment Permit. The Police Chief shall deny an
application for a Massage Establishment Permit or the renewal thereof if any of the following
circumstances exist:
(1) The application is incomplete and /or required supplementary materials are not
submitted on a timely basis;
(2) The applicant, owner, operator, or personnel of a Massage Establishment is required
to register under the provisions of California Penal Code § 290.
(3) The applicant has previously had a Massage Therapist Permit or similar license,
certificate or permit revoked by the Town or any other public agency in any state or country,
within five (5) years. Any revocation beyond five (5) years will be reviewed, and discretion for
approval given by, the Chief of Police;
(4) The applicant has made a false, misleading or fraudulent statement or omission of
fact in his /her application or other materials submitted with the application;
(5) The applicant, including applicant as a corporation or partnership, or former
employer of the applicant while the applicant was so employed, has been successfully
prosecuted in an abatement proceeding under the California Red Light Abatement Act (Penal
Code sections 11225 through 11325) or any other similar laws in another jurisdiction;
(6) The applicant has been convicted of:
(a) An offense which requires registration pursuant to California Penal Code section 290;
or a violation of sections 266(h), 266(i), 311 through 311.7, 314, 315, 316, 318 or 647(b), 647(d),
647(f) 647.1 of the California Penal Code, or equivalent offenses under the laws of another
jurisdiction, including any other State or Country.
(b) A prior offense which involves violation of California Health and Safety Code sections
11351 through 11354, 11358 through 11363, 11378 through 11380, or the sale of controlled
substances specified in California Health and Safety Code sections 11054, 11056, 11057 or
11058, or equivalent offenses under the laws of another jurisdiction, including any other State
or Country..
(c) Any offense involving dishonesty, fraud, deceit or the use of force or violence upon
another person in the last ten (10) years;
(d) Any offense involving any sex - related crime or crime of moral turpitude.
(e) For purposes of this section, a plea of "nolo contendere" may also serve as the basis
for the denial of a Massage Therapist Permit because the above - listed underlying offenses bear
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a substantial relationship to the qualifications, functions or duties of a Massage Therapist or
Establishment.
(7) The operation of the Massage Establishment at the proposed location would be
injurious to the health, safety or welfare of the people of the Town or would violate the Town's
zoning, building or fire regulations, or other provisions of law or the Town Code.
(8) The applicant or owner or operator of a Massage Establishment has been convicted
in a court of competent jurisdiction of any offense involving the use of force and violence upon
the person of another which constitutes a felony.
(9) The applicant or the owner or operator of a Massage Establishment has previously
violated the provisions of this Article or of any similar ordinance, law, rule or regulation of the
Town or another public agency which regulates the operation of Massage Establishments or
persons providing massage.
(10) If an Establishment Permit or a renewal thereof is approved, the Police Chief may
include such restrictions and conditions in the Establishment Permit as he or she deems
reasonable and necessary under the circumstances to ensure compliance with the purposes
and intent of this Article.
(c) Notice to applicant of grant or denial of application. The Police Chief shall give
written notice to the applicant of the grant or denial of the application for a permit by certified
mail or by personal service. If the application is denied, the notice shall advise the applicant of
the reasons for the denial and of his /her right to appeal the decision to the Town Manager
through the procedures set forth in subsection (d) below.
(d) Appeal of denial of Massage Establishment Permit to the Town Manager. Upon the
denial of an application for a Massage Establishment Permit by the Police Chief, the applicant
may appeal to the Town Manager through the following procedures:
(1) Request for appeal hearing. The applicant shall file a written request for an appeal
hearing, which states the specific grounds on which the decision of the Police Chief to deny the
permit is contested, with the Town Manager's office within ten (10) calendar days of the
personal service of the Police Chiefs decision to the applicant at the most recent home or
business address on file with the Police Department, or within ten (10) calendar days of service
of the Police Chiefs decision in the United States mail by certified mail.
(2) Notice of time and place of hearing. Upon receipt of a timely request for an appeal
hearing, the Town Manager's office shall notify the applicant in writing of the date, time and
place of the hearing before the Town Manager or designee, which shall not be less than ten
(10) calendar days after the service of such written notice on the applicant by in- person delivery
at the most recent home or business address on file with the Town or ten (10) calendar days
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after the deposit of the notice in an envelope addressed to the applicant in the United States
mail by certified mail.
(3) Hearing before the Town Manager or designee. At the hearing, both the applicant
and the Police Chief shall have the right to appear and be represented by counsel, and to
present evidence and arguments relevant to the grounds on which the decision to deny the
application is appealed. The burden of proof shall be on the applicant to demonstrate that
he /she meets the qualifications for a Massage Therapist Permit and is entitled to the issuance
of such permit.
(4) Decision of the Town Manager or designee. Within ten (10) calendar days of the
hearing, the Town Manager or designee shall issue a written decision, which states whether the
decision of the Police Chief to deny the application is upheld or reversed, and the reasons for
this determination.
The decision shall be served upon the applicant by personal service or by certified mail.
The decision of the Town Manager or designee shall be final.
Sec. 14.110.045. - Business license.
It is unlawful for any person, whether an employee or independent contractor of a
Massage Establishment, to open or operate a Massage Establishment or self - employment of
massage therapy without obtaining and maintaining in effect a Town business license and
paying a business license tax.
Section 14.110.046 - Massage Therapist and Massage Practitioner registration.
Certified Massage Therapists and Certified Massage Practitioners shall provide the
Police Chief with a copy of their California Massage Therapy Council certifications, the name
and address of their massage school(s), and the name and address of any Massage
Establishment in which they are employed or under contract, during an initial in- person
registration with the Police Chief. Certified Massage Therapists and Certified Massage
Practitioners shall also provide the Police Chief with a copy of their renewed certifications
within 90 days of their renewal and shall notify the Police Chief within 90 days of any start or
termination in employment or contract with a Massage Establishment. Massage Establishment
owners and operators shall be held liable for any employees or contractors who fail to comply
with the requirements of this section.
Sec. 14.110.047 - Notice of employees' status.
Every Massage Establishment holding an Establishment Permit shall notify the Police
Chief, in writing, of the name and residence of each employee or contractor providing massage
for compensation. Such notification shall occur within five calendar days of the start of the
individual's employment or contract with the Massage Establishment.
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Sec. 14.110.050. - Operating requirements for Massage Establishments.
Unless otherwise specified herein, all Massage Establishments shall comply with all of
the following operating requirements.
(a) Exterior signs. A recognizable and legible sign should be posted at the main entrance
identifying the business and which clearly identifies the establishment to foot and /or
automobile traffic. An additional "Massage" sign need not be in addition to the primary
business sign. The sign shall be in compliance with Chapter 29 of this Code.
(b) Display of Massage Establishment Permit. A copy of the current Massage
Establishment Permit shall be displayed in a conspicuous, public place within the Massage
Establishment premises. A copy of each Certified Massage Therapist's and Certified Massage
Practitioner's CAMTC certification shall be kept on the premises and available for inspection
(c) Dressing /massage room. Clients of the Massage Establishment shall be furnished
with a dressing/massage room, or private area for changing clothes.
(d) Payment /tips. All massage services shall be paid for in the reception area, and all
tips, if any, shall be paid for in the reception area. Massage Establishments may utilize a system
where tip envelopes are provided in the treatment rooms to be utilized and deposited by the
client in the reception area.
(e) Alcohol prohibited. No alcoholic beverages may be possessed or consumed on the
premises of the Massage Establishment except as allowed pursuant to Section 23399.5 of the
Business and Professions Code or other state or federal law.
(f) No condoms. No condoms shall be kept at the Massage Establishment unless they
are the personal property of persons on -site, and they are for the individual's personal use
outside the business premises.
(g) Standard of dress. All Certified Massage Therapists and Certified Massage
Practitioners shall meet the dress code requirements in California Business and Professions
Code section 4609, subdivision (a),(10), and all other employees, contractors, and owners of the
Massage Establishment shall remain fully clothed in clean outer garments while on the
premises of the Massage Establishment. At a minimum such clothing shall be made of non -
transparent material and shall cover the entirety of the torso area from the chest to mid - thigh.
(h) Operating hours. All Massage Establishments shall be closed for business by no later
than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. A Massage Establishment
operating under a Conditional Use Permit (CUP) approved prior to the enactment of this article
may continue to operate under the hours permitted in the Use Permit. The Town may set the
specific operating hours for each Massage Establishment through the Conditional Use Permit
process. It shall be unlawful for any Massage Therapist, or other employee of a Massage
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Establishment, to give or practice massage during the hours when the Massage Establishment is
closed.
(i) List of services. A list of services available and the cost of such services shall be
available in an open public place within the premises, and they shall be described in readily
understandable language. Nothing in this section shall preclude the list of services to be
printed in another language other than English. No owner, operator, manager, and /or
responsible person, of a Massage Establishment shall permit, and no Massage Therapist shall
offer or perform, any service other than those posted.
(j) Records. Every Massage Establishment shall keep a written record of the date and
hour of each service provided; the first and last name of each patron and the service received;
and the first and last name of the Massage Therapist administering the service. Said records
shall be open to inspection by Town officials, limited to sworn members of the Police
Department, Town Code Compliance Officer, and the Town Attorney, who is charged with
enforcement of this Article XI. A valid subpoena should be obtained by these specific officials
prior to inspection of records. These records may not be used by the Massage Establishment
for any other purpose than as records of service provided, and unless otherwise required by
law, they shall not be provided to third parties by the Massage Establishment. Said records
shall be retained on the premises of the Massage Establishment business office for a period of
not less than three (3) years.
(k) Identification of employees. Certified Massage Therapists and Certified Massage
Practitioners shall have in their possession their CAMTC- issued picture identification cards
while on the Massage Establishment premises or otherwise engaged in the business of
providing massage for compensation.
(1) Devices prohibited. No device, including, but not limited to, an audio or video
recording device, shall be used by a Massage Establishment, Certified Massage Therapist, or
Certified Massage Practitioner to monitor the practice of a massage, or any conversation or
other sounds in massage rooms without the expressed consent of the client. No device of any
kind shall be installed or used which would operate in any way to detect or interfere with law
enforcement surveillance or communication equipment.
(m) Advertising. No person or Massage Establishment shall advertise in any manner or
form that he, she, or it provides massage for compensation unless the person or Massage
Establishment meets the permit and certification requirements of this Article. All
advertisements for massage and Massage Establishments and the services offered therein shall
reflect the professional nonsexual nature of the business. No Massage Establishment granted
an Establishment Permit under this Article shall distribute or cause to be distributed any
advertising matter that depicts any service is available other than those services authorized by
this Article.
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(n) Entry and exit. All Massage Establishment clients shall enter and exit exclusively
through the front door of the Massage Establishment. The front door shall be the door facing
the street or, if no such door exists, the door that is most visible to members of the public
passing by the Massage Establishment.
(o) Sex and gender discrimination prohibited. A Massage Establishment cannot provide
services only to persons of a single sex or gender, nor may it refuse to serve any individual
based on sex or gender.
Sec. 14.110.055. - Sanitation requirements /condition of premises.
(a) Required maintenance of Massage Establishments. All premises and facilities of the
Massage Establishments shall be maintained in a clean and sanitary condition and shall be
thoroughly cleaned after each day of operation. The premises and facilities shall meet
applicable Code requirements of the Town, including but not limited to those related to the
safety of the structure, adequacy of the plumbing, heating, ventilating and waterproofing of
rooms in which showers, water or steam baths are used.
(b) Linens. All Massage Establishments shall provide clean, laundered sheets, towels,
and other linens in sufficient quantity for use by their clients. Such linens shall be laundered
after each use and stored in a sanitary manner. No common use of linens or towels shall be
permitted. Heavy white paper may be substituted for sheets on massage tables, so long as
such paper is used only once for each client and is then discarded into a sanitary receptacle.
Sanitary receptacles shall be provided for the storage of all soiled linens.
(c) Privacy standards for massage rooms, dressing rooms and rest rooms. The Massage
Establishment shall provide doors on all of its dressing rooms and massage rooms.
Nontransparent draw drapes, curtain enclosures or accordion - pleated enclosures are
acceptable in lieu of doors for dressing and massage rooms.
(d) No residential use. No part of the Massage Establishment shall be used for
residential or sleeping purposes. No cooking or food preparation will be allowed on the
premises unless it is within an employee only designated kitchen area.
Sec. 14.110.060. - Prohibited acts.
(a) Touching of sexual and genital parts of client during massage. No Certified Massage
therapist, or any other employee or contractor of a Massage Establishment shall place either
his /her hand or hands upon, or touch with any part of his /her body, a sexual or genital part of
any other person in the course of a massage, or massage a sexual or genital part of any other
person. Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any
person or the vulva or breast of a female. In the case of breast massage, female clients shall
sign a written consent form, provided by the establishment and /or practitioner prior to
providing breast massage.
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(b) Uncovering and exposure of sexual and genital parts before, during or after massage.
No Certified Massage Therapist, Certified Massage Practitioner, or other employee or
contractor of a Massage Establishment shall uncover and expose the sexual or genital parts, as
defined in subsection (a), above, of a client or themselves in the course of giving a massage, or
before or after a massage. This subsection does not prohibit a client from turning over in the
course of a massage, so long as the Massage Therapist holds a towel, sheet, blanket or other
drape over the client to protect his /her genital and sexual parts from exposure.
(c) Violation of provisions of this section may be charged separately as a felony as
permitted by state law.
Sec. 14.110.065. - Out -call massage services.
Any Massage Establishment who has complied with all applicable provisions of this
Article XI may provide out -call massage services to clients within the Town of Los Gatos. Such
Massage Establishments shall maintain their permits upon their persons; or within their
immediate reach, at all times while performing massage in the Town and shall display these
upon the request of any client, police officer or code compliance officer.
Sec. 14.110.070. - Transfer of Massage Establishment Permit.
No Massage Establishment Permit issued pursuant to this Article XI shall be transferred,
altered in name, or assigned in any manner, whether by operation of law or otherwise, from
location to location or from person to person.
Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit; payment
of renewal fee.
(a) All Massage Establishment Permits shall expire annually on the date of their
issuance, unless revoked sooner by the Police Chief.
(b) Applications for renewal of a permit must be submitted to the Police Chief by no
later than sixty (60) calendar days before the expiration of such permit on a form provided by
the Police Department, which shall require the applicant for renewal to update the information
contained in his /her original application. The applicant must pay the Town a non - refundable
renewal fee, in the amount established by resolution of the Town Council, at the time of filing
his /her application for renewal.
(c) After investigating the application for renewal, the Police Chief may renew the
permit if the applicant continues to meet the standards for the issuance of a permit, and none
of the grounds for denial of a permit set forth in subsection 14.110.040(b) exist. The Police
Chief shall give the applicant for renewal written notice of his /her decision within sixty (60)
calendar days of the submission of the application for renewal to the Police Department by
personal service of the decision to the applicant at his /her most recent home or business
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address on file with the Police Department or deposit of the decision in the United States mail
by certified mail. If the application is denied, the notice shall state the specific grounds for the
denial and that the applicant may appeal to the Town Manager through the procedures set
forth in section 14.110.040(7)(d).
(d) If the holder of a Massage Establishment Permit does not file a timely application for
renewal sixty (60) calendar days before expiration of the permit), he /she shall be required to
file an application for a new permit pursuant to section 14.110.025 and to pay the applicable
fees.
Sec. 14.110.080. - Suspension and revocation of Massage Establishment Permit.
(a) Grounds for suspension or revocation of Massage Establishment Permit. The Police
Chief may suspend for a period of up to nine (9) months or revoke a Massage Establishment
Permit, according to procedures set forth in subsection (c) below, if there is good cause to
believe that:
(1) The permit holder has operated or managed the Massage Establishment in a manner
which violates any provision of this Article XI, or other applicable Town Code provisions, state
or federal law;
(2) The permit holder has committed any offense involving lewdness, indecent
exposure, prostitution, human trafficking or any other offense which would be grounds for
denial pursuant to section 14.110.040, or employees of the Massage Establishment have
committed such offenses in the course of their employment and the permit holder has
permitted them to do so or has failed to prevent them from doing so;
(3) Has made a false or misleading statement or omission of fact on his /her application
for a permit, or for renewal of the permit, or in any supplementary materials submitted with
the application; or
(4) Is operating or managing the Massage Establishment in a manner which poses a
danger to the health and safety of clients and /or the public, or without due regard for proper
sanitation or hygiene.
(b) Procedure for revocation or suspension of Massage Establishment Permits.
(1) Notice to holder of permit. Whenever the Police Chief has good cause to believe that
grounds for the suspension or revocation of a Massage Establishment Permit exist, he /she shall
give the holder of the permit written notice of the intended suspension or revocation to the
holder of permit by personal delivery or by certified mail. The notice shall provide for
suspension or revocation of the Massage Establishment Permit 15 calendar days after service of
the notice upon the holder of permit, unless the holder of permit requests an appeal hearing.
The notice shall provide information on the appeal process and shall state the alleged grounds
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for the proposed revocation or suspension of the permit, and the notice shall be served on the
holder of the permit personally at the most recent home or business address on file with the
Police Department or by deposit of the notice in the United States mail by certified mail. Said
notice shall also state that if no written request for a hearing is timely received, the applicant
shall be deemed to waive its rights to a hearing.
(2) Hearing before Police Chief. Following the receipt of such suspension or revocation
notice and within 15 calendar days thereafter, the holder of permit may file an appeal of the
suspension or revocation and request a hearing. The hearing on the revocation or suspension of
the permit shall be held before the Police Chief or his /her designee no less than ten (10)
calendar days after the personal service of the notice to the holder of the permit at the most
recent home or business address on file with the Police Department, or no less than ten (10)
calendar days after deposit of the notice, addressed to the holder of the permit or certificate, in
the United States mail by certified mail. At the hearing, the holder of the permit and a
representative of the Town shall have the right to appear and to be represented by counsel,
and to present evidence and arguments which are relevant to a determination of whether
grounds for suspension or revocation of the permit or certificate exist.
(3) Decision of Police Chief. Within ten (10) calendar days after the hearing, the Police
Chief shall issue a written decision which states whether the permit is suspended or revoked,
the length of any suspension, and the factual basis for the decision, and that the holder of the
permit may appeal any suspension or revocation to the Town Manager through the procedures
set forth in paragraph (4), below. The decision of the Police Chief shall be served on the holder
of the permit by personal service at the most recent home or business address on file with the
Police Department or deposit of the notice, addressed to the holder of the permit, in the United
States mail by certified mail. Said notice shall also state that if no written request for an appeal
hearing is timely received, the applicant shall be deemed to waive its rights to an appeal
hearing.
(4) Request for appeal hearing before the Town Manager. The holder of the permit may
appeal the decision of the Police Chief by filing a written request for an appeal hearing, which
states the specific grounds on which the decision of the Police Chief is contested, with the Town
Manager's office within ten (10) calendar days of the personal service to the holder of the
permit of the Police Chief's decision at the most recent home or business address on file with
the Police Department, or within ten (10) calendar days of service of the decision by deposit of
the notice, addressed to the holder of the permit, in the United States mail by certified mail.
(5) Appeal hearing before the Town Manager. Upon receipt of a timely request for an
appeal hearing, the Town Manager's office shall notify the permit holder in writing of the date,
time and place of the hearing before the Town Manager or designee which shall not be less
than ten (10) calendar days after service of such written notice on the permit holder by
personal service at the most recent home or business address on file with the Police
Department, or ten (10) calendar days after service of the notice by deposit of the notice,
addressed to the holder of the permit or certificate, in the United States mail by certified mail.
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At the hearing, both the holder of the permit and the Police Chief shall have the right to
appear and be represented by counsel and to present evidence and arguments which are
relevant to the grounds for the appeal, as stated in the request for an appeal hearing. Within
ten (10) calendar days of the hearing, the Town Manager or designee shall issue a written
decision that states whether the decision of the Police Chief is upheld, modified or reversed,
and the length of any suspension. The decision shall be served on the holder of the permit by
in- person delivery or by certified mail. The decision of the Town Manager or designee shall be
final.
(6) Effective date of revocation or suspension. Any suspension or revocation of a permit
shall become effective immediately upon the personal service of the written decision of the
Police Chief, or, in the event of an appeal, the Town Manager or designee, to the holder of the
permit at the most recent home or business address on file with the Town, or within five (5)
calendar days of the deposit of such decision addressed to the holder of the permit into the
United States mail by certified mail.
(7) Surrender of suspended or revoked Massage Establishment Permit to Police Chief.
Upon a written decision by the Police Chief, or in the event of an appeal, by the Town Manager
or designee, which suspends or revokes a permit, the permit shall immediately be surrendered
to the Police Chief. In the case of a suspension, the Police Chief shall return the permit after
the period of suspension has ended.
(8) Immediate suspension of a Massage Establishment permit.
(a) The Police Chief may immediately suspend an establishment permit if there is
reasonable cause to believe that:
(1) The permit holder is operating or managing the massage establishment, or providing
services in a manner which poses an immediate danger to the health or safety of employees,
clients, or the public;
(2) The holder of the permit has been convicted of any offense involving lewdness,
indecent exposure, prostitution, sexual battery or any sex - related crime. The only
establishment permit which shall be immediately suspended under this subsection shall be that
establishment permit belonging to the person convicted.
(b) If the Police Chief immediately suspends a permit, the Police Chief shall provide
notice be given to the holder of the permit by personal delivery or by certified mail. The notice
shall contain a statement that the Massage Establishment Permit is immediately suspended and
such suspension shall remain in effect during the pendency of the suspension and appeal
process. The notice shall provide information on the appeal process. The notice shall contain a
statement that the suspension may lead to a permanent revocation of the establishment
permit.
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(c) Following the receipt of such immediate suspension notice and within 15 calendar
days thereafter, the holder of the permit may file an appeal of the suspension and request a
hearing be held in accordance with this Section.
(d) If after 15 calendar days from the receipt of the suspension notice, the holder of the
permit has not requested an appeal, the Police Chief's decision to suspend shall become final
and the establishment permit shall be permanently revoked.
Sec. 14.110.085. - Criminal penalties.
Except as specified in section 14.110.060, a violation of any provision of this Article is a
misdemeanor and may be prosecuted by the Town in the name of the people of the State of
California. The maximum fine or penalty for any violation of this Article XI shall be one
thousand dollars ($1,000.00), or a term of imprisonment in the county jail for a period not
exceeding six (6) months.
Except as otherwise provided, every such person shall be guilty of a separate offense for
each and every day during any portion of which any violation is committed, continued or
permitted by such person, and shall be punishable accordingly.
Sec. 14.110.090. - Inspection by officials.
Any sworn investigating official of the Police Department, Town of Los Gatos Code
Compliance Officer, Building Official, Town Attorney or County Fire Department officials
charged with investigating and enforcing compliance with this Article XI, shall have the right to
enter the Massage Establishment from time to time during regular business hours for the
purpose of making reasonable inspections to observe and enforce compliance with applicable
regulations, laws, codes and the provisions of this Article XI.
Sec. 14.110.095. - Massage Establishment operated in violation of this Article is
deemed a public nuisance.
Any Massage Establishment which is opened, operated or maintained contrary to the
provisions of this Article XI shall be deemed a public nuisance. In addition to, or in lieu of any
other available legal remedies, the Town Attorney or District Attorney of Santa Clara County
may commence a civil legal action or actions in a court of competent jurisdiction to abate such
nuisance and to enjoin the continued operation and maintenance of the Massage
Establishment in a manner prohibited by this Article XI
Sec. 14.110.100. - Application of this Article XI to pre- existing Massage Establishments.
The provisions of this Article shall be applicable to all persons and businesses described
herein. Massage Establishment Permits issued by the Town before November 1, 2016 shall not
be renewed. Persons holding such permits must submit a written application for an
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Establishment Permit and comply with the establishment requirements set forth in this Chapter
and be issued an Establishment Permit as set forth in this Chapter.
SECTION II
The Town Council finds and determines that the adoption of this Ordinance is exempt
from the requirements of the California Environmental Quality Act (CEQA) per CEQA Guidelines
under the General Rule (Section 15061(b)(3)), which sets forth that the CEQA applies only to
projects which have the potential for causing a significant effect on the environment. It can be
seen with certainty that the proposed Town Code text amendments will have no significant
negative effect on the environment.
SECTION III
If any provision of this Ordinance or the application thereof to any person or
circumstances is held to be invalid, such invalidity shall not affect other provisions or
applications of the Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this Ordinance are severable. The Town Council
hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any
particular portion thereof and intends that the invalid portions should be severed and the
balance of the ordinance be enforced.
SECTION IV
Except as expressly modified in this Ordinance, all other sections set forth in the Los
Gatos Town Code shall remain unchanged and shall be in full force and effect.
SECTION V
This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication
of the full text of the ordinance within fifteen (15) days after its passage, a summary of the
ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by
the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant
to GC 36933(c),(1).
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SECTION VI
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos held on the 1" day of November, 2016, and adopted by the following vote as an
ordinance of the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos
held on the 15th day of November, 2016.
COUNCIL MEMBERS:
AYES: Marcia Jensen, Steve Leonardis, Rob Rennie, Marico Sayoc, Mayor Barbara Spector
NAYS: None.
ABSENT: None.
ABSTAIN: None
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFO NIA
DATE: L J�
ATTEST:
CLERK AST OF THE OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE:
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